JUDGEMENT
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(1.)THE respondents 1 and 2 herein filed O.S.No.8 of 1998 in the Court of Senior Civil Judge, Chirala, against the father of the appellant, by name, Somalingam (1st defendant) and respondents 3 to 9, for the relief of partition and separate possession of the suit schedule properties. During the pendency of the suit, the father of the appellant died, and accordingly the appellant was brought on record as defendant No.8. For the sake of convenience, the parties are referred to, as arrayed in the suit.
(2.)THE case of the plaintiffs was that one Sajja Mallaiah had five sons, by name, Somalingam, father of the appellant (8th defendant), Pardhasaradhi, husband of the 4th respondent, Sreenadham, father of the 3rd respondent, Kota Subbarao, father of the 2nd respondent, and Nageswara Rao, the 1st respondent. Mallaiah is said to have died intestate, leaving behind him 3 items of the suit schedule property.
The plaintiffs stated that Sajja Nagarjuna, the only son of Pardhasaradhi, relinquished his share through a document dated 24-10-1977, the properties remained joint, and that in spite of their demands, defendants 1 and 2 did not partition the suit schedule properties. Defendants 3 to 8 came to be added as parties, later on. The 1st defendant, i.e. the father of the appellant herein filed the written-statement, stating that partition among the sons of late Sajja Mallaiah has taken place long back and each party is enjoying his respective share. He further stated that item No.1 of the suit schedule fell to his share and items 2 and 3 fell to the shares of the 1st plaintiff and father of the 2nd plaintiff. He has also stated that the father of the 2nd plaintiff sold his property through a document dated 31-12-1970 in favour of the 8th defendant.
The 3rd defendant filed a written-statement, stating that defendants 3 to 8 and Nagarjuna are legal representatives of Pardhasaradhi, entitled for 1/5th share and that defendants 3 to 8 have nothing to do with the relinquishment deed said to have been executed by Nagarjuna on 24-10-1977.
(3.)THE trial Court decreed the suit on finding that there was prior partition of the properties left by late Sajja Mallaiah, and that his sons were enjoying their respective shares. THE plaintiffs filed A.S.No.143 of 2005 in the Court of I Additional District Judge, Ongole. THE appeal was partly allowed, through judgment dated 31-05-2010 and a preliminary decree is passed, directing that the 1st plaintiff is entitled to 1/5 in items 1 to 3 of the plaint schedule property and the 2nd plaintiff is entitled to 1/35th share in item No.1 only. THE shares of the defendants were also mentioned. Hence, this Second Appeal.
Sri Nimmagadda Satyanarayana, learned counsel for the appellant submits that the lower Appellate Court committed a patent legal error in taking on record, additional evidence in the form of Exs.A-4 and A-5, a Will, dated 02-09-1991, and deed of relinquishment, dated 24-07-1977, without there being any oral evidence. He contends that the oral and documentary evidence on record clearly establish that there was a prior partition among the sons of Sajja Mallaiah and the suit for partition of the very items of the property is untenable. Learned counsel submits that the application filed by the plaintiffs under Rule 27 of Order 41 C.P.C., was totally untenable, since even according to the lower Appellate Court, they did not make out a case under Clause (a) or (aa) of Order 41, Rule 27 C.P.C. He submits that the lower Appellate Court was not justified in treating the additional evidence as the one, under Clause (b) of the said Rule.
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